This week in Madrid, the Council of Ministers initiated discussions on major changes to the country’s basic law. On the agenda is a long-disputed issue: enshrining the right to abortion at the constitutional level. The new proposal suggests linking this right to the existing provision on the protection of health.
Unlike previous attempts, the current draft does not propose a separate article on the right to abortion. Instead, it plans to add a new clause to Article 43, which already addresses the state’s responsibility for the health of its citizens. This approach avoids the much more complex procedure required for amending fundamental rights in the Constitution. Changes to Article 15, related to personal inviolability, would require a two-thirds majority in both chambers, the dissolution of parliament, and a mandatory referendum — making the process nearly impossible.
The chosen strategy makes it possible to use a simpler procedure, requiring only a three-fifths majority of lawmakers, while a nationwide referendum becomes an option rather than a requirement. However, even this path appears challenging given Spain’s current political fragmentation. Parliament will have to overcome numerous hurdles to see the reform through to the end.
Nevertheless, even if the amendment is adopted, its actual impact on protecting abortion rights will be limited. The fact is that the right to health in the Spanish Constitution is not among the fundamental rights but is considered only a guiding principle for social and economic policy. Unlike fundamental rights, such principles are not directly enforceable and require additional legislation for their implementation. This means that the state is obliged to take them into account when drafting laws, but citizens cannot demand their enforcement directly through the courts.
Ultimately, the new version of Article 43 will rather emphasize the existing obligation of the authorities to ensure access to medical services than create an unshakeable guarantee of the right to abortion. For supporters of the reform, this may represent a step forward, but from a legal standpoint, the ‘guarantee’ of the right will remain quite conditional.
